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Supreme Court's Decision On Health Care And Why It Make You Queasy Even If You Love It

This is one Newsletter that really contains no news. You have heard more about The Supreme Court's decision from the press and media than you could digest. Still, this is one Newsletter that must be written. The reason: The Supreme Court's decision re-defines the authority of the federal government. And it turns logic inside out along the way. That is more than news. It is a seismic event.

I have no strong feeling about the statute itself ("Patient Protection and Affordable Care Act," not so fondly called by some "Obama Care"). But I do feel strongly about how the Supreme Court saved it from a premature death.

First, let's run through the scorecard. Five to four again. The decisive, majority opinion was written by the Chief Justice, Justice Roberts. He was joined by the so-called "liberal" contingent consisting of Justices Ginsburg, Sotomayor, Breyer, and Kagan. Among that group Justice Ginsburg wrote a long, separate, concurring opinion. The minority consisted of the so-called "conservative" wing consisting of Justices Scalia, Thomas, Alito, and Kennedy. (Justice Kennedy is often considered a swing vote, so it may be unfair to label him either conservative or liberal.) Justice Scalia wrote a long dissenting opinion challenging the majority on several fronts.

As I see it, the majority opinion is the result of a judicial compromise. The Chief Justice apparently agreed to uphold the Act, so long as he could do so on some basis other than the Commerce Clause. (The Commerce Clause in the Constitution authorizes the federal government to enact a wide variety of laws which, in one way or another, regulate commerce occurring among the states.) The liberal justices apparently went along with that compromise. Still, Justice Ginsburg explained at length in her opinion why she thought the Commerce Clause should be used. The Chief Justice relied only upon the taxing power of Congress. More on that below.

In his dissent Justice Scalia agreed with the Chief Justice that the Commerce Clause could not support the Act, but he went on to say that neither could the taxing power of Congress. He had little difficulty pointing out the inconsistencies in the other opinions.

Three things concern me: First, by prohibiting the Commerce Clause from applying to "inactivity" as opposed to active participation in commerce, the Chief Justice created an artificial distinction which, in the future, may prevent the federal government from regulating things that really need regulating on a universal basis. At the same time, by ruling that Congress may impose a tax on an inactive person - a person who decides to do nothing about joining a specific program - the Chief Justice introduced the concept of taxing a taxpayer simply because the taxpayer exists. Why not, I wonder, begin taxing a baby at birth?

The Chief Justice reasoned that not buying health insurance is a taxable "condition" much like "earning income." No, not in my experience. The energy it takes for me or anyone else to earn income is huge in comparison with the energy it takes to decide not to buy something.

The Act imposes a "penalty" on persons who refuse to buy health insurance. There is a statute called the "Anti-Injunction Act" that prohibits anyone from going to court to stop the collection of a tax. The Chief Justice decided that the "penalty" imposed by the Act does not fall under the Anti-Injunction Act because it functions as a penalty; yet, at the same time, the Chief Justice treated it is a "tax" under the Constitution. The Act itself uses the word "penalty" eighteen times. According to the Chief Justice, Congress wrote "penalty" but really meant "tax." So now we have the same thing --- a payment to IRS - that changes its identity depending upon the setting in which it is placed. I call that breeding salamanders.

Second, the Chief Justice does not tell us where the taxing power of Congress ends. How many things we choose not to do will become the subject of taxation in the future? That worries me. That should worry every other citizen.

Third, restricting Congress' use of the Commerce Clause may prove short-sighted. To that extent I have to agree with the opinion of Justice Ginsburg. Yet, even she engages in some devious reasoning. In order to duck the criticism that not buying health insurance is the opposite of "activity" and therefore cannot be regulated under the Commerce Clause, Justice Ginsburg shifted the focus from the purchase of insurance to the 'consumption of healthcare.' She made the point, inescapably true, that at some time before death every human being will require healthcare. By that logic every human being will become "active" in the consumption of healthcare in commerce at some time. She believes that Congress can regulate the prospective "activity." This is slippery reasoning. It shifts the focus from the decision about buying or not buying insurance to the use of healthcare.

Justice Ginsburg opens up the concept of regulating activity in commerce before it actually occurs. The Chief Justice opens up the concept of taxing a person simply because the person exists. Either way, big brother grows a longer arm with which to reach out and squeeze.

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